1. Introduction and background

1.1 Purpose of the consultation paper

Without additional funding for refugee services, Legal Aid Ontario (LAO) will be temporarily suspending some services as of July 1, 2017 to reduce the annual cost of the program from $33.6M to $20.5M. LAO has supported over-expenditures in the refugee program for a number of years and cannot do so any longer given the increase in demand for services and LAO's budget challenges in other programs. LAO recognizes that this will have a serious impact on vulnerable clients and that difficult choices will regrettably need to be made to achieve a balanced budget plan.

LAO's refugee program has historically cost approximately $20M annually. In the last two years, the cost has increased to $27M in 2016/17 and is forecast to cost $33.6M in 2017/18.

LAO must reduce the annual cost of the program from $33.6M to a $20.5M

In this paper, LAO is asking for feedback from stakeholders and individuals in the refugee determination system on some temporary service suspension ideas that would be implemented this summer. LAO will be reaching out in the late summer to discuss longer term program changes with a view to serving as many clients as possible.

LAO will consider all comments and suggestions as they are received given the need for immediate action. Details regarding the consultation process are set out at the end of the paper.

1.2 The changing landscape

The landscape for providing refugee and immigration law services has changed dramatically in recent years. There are an unprecedented 65 million forcibly displaced persons around the world.

1.3 The funding picture

The federal government has been contributing $11.5M annually to six provinces for refugee legal aid services—an amount that has not changed since 2002. LAO's annual share has been in the $7M range.

In addition to federal funding, LAO has allocated annually between $9M to $14M to refugee and immigration certificates and staff services.

If demand for services remains the same, for 2017/18, LAO forecasts refugee and immigration spending at approximately $33.6M ($29.6M for certificate services; $4M for staff services).

In December 2016, the federal and provincial governments provided a total of $7.72M in additional one time funding to meet demand. LAO was fortunate to receive this support, but its one-time nature means that concerns for 2017/18 and future years remain. This generous funding, together with service management strategies, enabled LAO to address its $9M shortfall for 2016/17 without impact on the services it currently delivers.

The March 2017 federal budget announcement of five-year funding for refugee and immigration legal aid services remains essentially the same as previous years-$8.6M for Ontario for two years, with a return to $7M in the subsequent three years of the five year funding agreement. This means that the new federal funding commitment will be insufficient to address LAO's projected refugee and immigration funding shortfall in 2017/18 and beyond.

As a result, LAO must take immediate steps to ensure it operates within its means and, for the long term, LAO must consider making changes to how it delivers services to ensure LAO can help as many refugees and immigrants as possible.

2. Consultation — Prioritization and Service Suspensions

LAO must immediately suspend services for which there is no funding, and would like to hear from you as to how best to do this.

Because LAO will need to quickly implement service reductions, these changes are not meant to determine what the final program will look like. LAO will hold more extensive consultations with stakeholders later this summer and in the fall to discuss the future state of refugee programming given LAO's financial constraints.

The issues and questions set out below are not exhaustive. Readers are encouraged to provide comments on any issue they believe to be important.

The United Nations High Commissioner for Refugees (UNHCR) and other international organizations prioritize the RPD hearing, or hearing of first instance, as a key component in refugee protection determination.

LAO suggests the following prioritization of its services based on a risk model:

general immigration services, including humanitarian and compassionate (H&C) submissions.

Based on the above prioritization of services, the suspension of the following general immigration services would provide the indicated cost savings:

General immigration cases 2016/17

Certificate costs

representation at inquiry

$290K

H&C submissions

$400K

pre-removal risk assessment submissions

$550K

deferral submissions

$245K

appeals to the IRB (appeal division) from denial of sponsorship (16 hours and attendance time)

$100K

opinions re: merits of appeal to IRB from deportation order (three hours)

$95K

Appeals to the IRB (appeal division) from deportation order (16 hours and attendance time)

$315K

TOTAL ANNUAL SAVINGS

$2.12M

Suspension of all general immigration certificate services is estimated to save only $2.12M annually. This suspension would have to be combined with suspensions in other coverage areas (RPDs, RADs, JRs, for example) to bring the program within a $20.5M envelope. $20.5M includes $16.5M of certificate services, $3M of staff client services, and $1M of summary advice, panel services and administration.

The following temporary service suspensions are under consideration:

Suspension of all refugee and immigration services when funding runs out in August/September 2017

If all services are considered a priority, and if LAO continues without any changes to coverage, LAO could fund existing services under its current service delivery model until August or September 2017. Suspension would result in no refugee and immigration coverage for the remaining six months of LAO's fiscal year, including no RPD matters, no RAD matters and no federal court judicial reviews.

Suspension of all refugee and immigration services except RPD services

If RPD coverage receives the highest priority, services might be limited to representation at the RPD (including Basis of Claim (BOC) and preparation for and attendance at hearing).

With a budget of $16.5M for refugee certificate services, LAO is able to issue approximately 5,900 RPD certificates at an average cost of $2,800 per certificate. In 2016/17, LAO issued 9,000 RPD certificates.

In addition to focusing certificate services on RPD matters, LAO could focus its staff services on RPD matters too in order to ensure as much RPD representation as possible. All three staff offices (Toronto, Hamilton, Ottawa), with a focus solely on RPD matters, could complete approximately 1,130 cases annually.

If RPD coverage is to receive the highest priority, and as many refugee clients as possible be served, this option considers Basis of Claim Form preparation only. For 2016/17, LAO issued 9,000 RPD certificates. This option provides partial RPD coverage for all refugee clients. It would be open to the lawyer to negotiate a private retainer with the client for continued representation at the refugee hearing.

For 2016/17, LAO issued 9,000 RPD certificates. Total certificate costs of the BOC only coverage is approximately $9M (9,000 certificates x $1,000 BOC average case costs). With a refugee certificate funding envelope of $16.5M, the remaining funding (i.e. $7.5M) could be allocated to other refugee and immigration services such as stays ($77,000), RADs ($1.5M) and federal court judicial reviews ($1.8M).

For discussion:

Can you think of other service suspension routes LAO should consider in its efforts to prioritize services and ensure as many clients as possible are served within a $20.5M funding envelope?

3. Consultation process

LAO welcomes feedback on its suggestions and will consider ideas that could help LAO achieve savings while still meeting the needs of as many refugee clients as possible.

The consultation period will run from May 23 to June 16, 2017. Written submissions should be provided no later than June 16 to RefConsult2017@lao.on.ca or submitted online through our feedback form.

LAO will use several consultation techniques, including:

Written submissions. LAO will distribute this paper widely and will specifically invite several organizations and individuals to provide written submissions.

In-person group consultation sessions. LAO will organize sessions with interested organizations and individuals.

Online consultation sessions.

To participate in the consultation process, please visit LAO's website for the consultation schedule or email RefConsult2017@lao.on.ca

4. Next Steps

LAO will consider feedback as it is received. LAO will implement changes in the summer of 2017.

Though LAO will be making temporary and immediate service suspensions, LAO recognizes that long-term program decisions cannot and should not be made in such condensed time-frames.

In the absence of permanent increased funding, LAO will have to make longer-term program changes to provide the most expansive service possible within the funding available. LAO will be consulting further with stakeholders later this summer, but it is interested in early feedback on the following questions:

For discussion:

Are there any initiatives/collaborations with IRB/IRCC/CBSA/DOJ that could enhance efficiency within the system without compromising services?

Can service providers be more effectively used in the provision of refugee and immigration legal aid services?

Is a block fee system for representation at RPD (full hearing, short hearing, expedited claim, 'enhancers' for ministerial intervention) feasible and could it save costs?

Could block fees or contracting lead to efficiencies and cost-effectiveness for high volume same country practices?

What role should LAO's staff services play?

What role can licensed paralegals play?

What role can summary legal advice, brief services and information play in the service of clients?

Are there efficiencies within country research services that LAO can leverage to reduce the cost of duplicating these services across the private bar?

Are there supports for the refugee service providers that could assist them in providing services more efficiently?

Could enhanced support from LAO LAW to provide sample submissions to the RPD, and precedent facta for RAD and federal court present an opportunity for cost savings?

Are there opportunities to create cost-efficiencies and support the bar in translation and interpretation services?

Are there other system improvements you would like LAO to consider that could reduce costs?

What role do you see for the use of technology in the provision of refugee and immigration services?

What concepts would you like explored in LAO's program changes consultation document that will be focusing on the longer term?

Is there a greater role for legal clinics in the provision of refugee services?

Appendix A: LAO's current services and service model

Services

Currently, LAO provides the following refugee and immigration services:

Refugee

preparation of a Basis of Claim (BOC) and related forms for Citizenship and Immigration Canada (CIC)

representation at a hearing with the Refugee Protection Division (RPD)

preparation of an appeal to the Refugee Appeal Division (RAD)

preparation of application for Judicial Review (JR) in the federal court

representation/submissions to Canada Border Services Agency (CBSA) to request a deferral of removal

preparation of a motion for a stay of removal in the federal court

representation at the RPD for a cessation or vacation hearing

preparation of a pre-removal risk assessment (PRRA) application

preparation of a danger opinion

Immigration

representation at a detention review

representation at immigration appeals

preparation of a H&C application

preparation of habeas corpus application

Service Model

LAO currently uses three types of service provider models to deliver refugee and immigration services: private bar certificates, staff, and community legal aid clinics.

Approximately 85 per cent of refugee and immigration services are provided by the private bar on certificates.

The Refugee Law Offices (RLO) in Toronto and Hamilton and the Integrated Legal Services Ottawa (ISLO) in Ottawa provide refugee and immigration staff services through multidisciplinary service teams comprised of lawyers, paralegals, and legal aid workers.

Additional refugee and immigration services are provided by community legal clinics, primarily in the Toronto region and Ottawa. Services are also provided by supervised law students at some Student Legal Aid Services Societies (SLASS), which are student legal aid clinics located at each of Ontario's law schools.

Private bar services - certificates issued and costs

The following charts demonstrate the increase in the number of refugee certificates and their cost over the last five years:

Table 1: Refugee and Immigration certificate cost by proceeding

Immigration & Refugee Certificates Cost ($Millions)

FY 2011/12 Actual & Audited

FY 2012/13 Actual & Audited

FY 2013/14 Actual & Audited

FY 2014/15 Actual & Audited

FY 2015/16 Actual & Audited

FY 2016/17 Actual & not Audited

RPD (BoC & Hearing)

$18.7

$16.4

$13.0

$13.6

$13.4

$18.8

Federal Court Judicial Review

$2.5

$2.7

$1.4

$1.4

$1.8

$1.8

Other Immigration (H&C)

$0.5

$0.3

$0.4

$0.4

$0.9

$1.8

Immigration Appeal Division

$0.3

$0.2

$0.2

$0.2

$0.2

$0.2

Refugee Appeal Division

N/A

N/A

$0.2

$0.5

$0.9

$1.5

Total

$21.9

$19.6

$15.2

$16.0

$17.1

$24.1

Table 2: Refugee and Immigration Certificates issued

Certificates Issued

2011/12

2012/13

2013/14

2014/15

2015/16

2016/17

RPD - BOC & hearing

10,035

6,300

4,062

5,068

6,617

9,006

Federal court - judicial review

2,716

1,599

519

516

726

912

Immigration - H&C, etc.

690

372

493

495

1,179

1,584

Immigration Appeal Division (IAD)

211

157

86

103

107

151

RAD

0

0

149

263

639

1,005

TOTAL

13,652

8,428

5,309

6,445

9,268

12,658

Table 3: Refugee and Immigration average certificate cost by proceeding

Average cert case cost

2011/12

2012/13

2013/14

2014/15

2015/16

RPD

$2,185

$2,298

$2,460

$2,722

$2,787

Fed Ct. Judicial Review and Appeals

$1,159

$1,339

$1,808

$2,803

$3,181

Appeals to Immigration Appeal Division

$1,654

$1,910

$1,857

$2,047

$2,263

Refugee Appeal Division

N/A

N/A

$2,141

$2,178

$2,201

Other immigration

$930

$926

$961

$1,132

$1,265

Certificate costs include six 5 per cent increases to the hourly tariff by the provincial government.

Chart 1: Refugee Law Office Toronto

Chart 2: Refugee Law Office Hamilton

Annual budget 2016/17: $220,415

Lawyers: 2

Licensed paralegal: 1

Chart 3: Integrated Legal Services Office Ottawa

Annual budget 2016/17: $250,000

Lawyers: 2

Legal aid worker: 1

Each of LAO's staff offices provides a range of services, with the smaller offices in Hamilton and Ottawa focusing on RPD matters, detention and general immigration, while also doing some appellate work. The staff office in Toronto has been in existence for over 20 years. In addition to RPD and general immigration, the Toronto office, provides appellate and test case litigation services, all the way to the Supreme Court of Canada.

The staff offices focus on serving vulnerable client groups such as persons with mental health issues (schizophrenia, bipolar, chronic depression), people experiencing domestic abuse or torture, and unaccompanied minors, as well as detained clients. The RLO Toronto also focuses on clients with complex legal problems including criminal and security inadmissibility.

LAO tracks the outcomes of refugee and immigration services provided through its staff offices. The RLO Toronto is the largest staff office and has the largest caseload. The RLO Toronto and RLO Hamilton's success rate is around 72 per cent. The Ottawa ILSO's success rate is around 84 per cent.

These figures represent the average approval rate for all case types.

Chart: Staff office services: Outcomes

Incomplete

Matter completed succesfully

Matter completed unsuccessfully

Referred out

Hamilton

21

46

18

23

Ottawa

16

32

6

18

Toronto

81

397

153

93

Clinic services

Several community legal clinics throughout the province—most in the Greater Toronto area-deliver refugee and immigration services through staff and volunteer services.

In total, these clinics opened 762 refugee and immigration cases in 2015/16.

Clinic staff services provided to refugee claimants include H&C applications and sponsorship applications and appeals. Some clinics also do RPD and federal court matters.

Also, some Student Legal Aid Societies provide an array of immigration and refugee law services (i.e. Downtown Legal Services, University of Toronto, Faculty of Law and Community and Legal Aid Services Program of Osgoode Hall Law School (York University)).

Recently, LAO provided clinic funding for one immigration practitioner to serve three clinics in West Toronto area. In East Toronto, immigration lawyers and immigration community legal workers were funded to supplement immigration and refugee services for six clinics. Many GTA clinics receiving financial eligibility funding have hired or plan to hire staff to provide immigration law services (for the York and Peel regions). Funding for the immigration services in the southwest region of Ontario has also resulted in the hiring of staff for these services.

Community clinics and immigration and refugee services

Location

Clinic(s)

Greater Toronto Area

Centre for Spanish-Speaking Peoples

East Toronto Community Legal Services

Flemingdon Community Legal Services

Kensington-Bellwoods Community Legal Services

Metro Toronto Chinese & Southeast Asian Legal Clinic

Centre francophone de Toronto

Mississauga Community Legal Services

Rexdale Community Legal Services

Neighbourhood Legal Services

Parkdale Community Legal Services

South Asian Legal Clinic of Ontario

HIV & AIDS Legal Clinic (Ontario)

North Peel & Dufferin Community Legal Services

Community Legal Clinic of York Region

Willowdale Community Legal Services

Scarborough Community Legal Services

West Scarborough Community Legal Services

South Etobicoke Community Legal Services

West Toronto Community Legal Services

Ottawa

Community Legal Services - Ottawa

South Ottawa Community Legal Services

West End Legal Services of Ottawa

Windsor

Legal Assistance Windsor

Windsor-Essex Bilingual Legal Clinic

Among private bar, staff and clinics, LAO estimates that in 2016/17, close to 14,000 refugees and immigrants received legal aid services.

Legal Aid Ontario (LAO), an independent but publicly funded and publicly accountable non-profit corporation. None of this material may be commercially reproduced, but copying for other purposes, with credit, is encouraged.

Contacts

Legal Aid Ontario (LAO), an independent but publicly funded and publicly accountable non-profit corporation. None of this material may be commercially reproduced, but copying for other purposes, with credit, is encouraged.